RENDERED: OCTOBER 29, 2015 

TO BE PUBLISHED 

oi5uprriur 1nurf of 7grWei , il

2014-SC-000653-MR U U u 

1AT ' Lt-Vg-V5 * C-.∎ck-G-rtwar‘4744. 

MICHAEL E. SIMPSON 

ON APPEAL FROM JEFFERSON CIRCUIT COURT 

V. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE 

NO. 13-CR-000990-02 AND 13-CR-002750 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION OF THE COURT BY JUSTICE VENTERS 

AFFIRMING 

Appellant, Michael Simpson, appeals from a judgment of the Jefferson 

Circuit Court convicting him of the crimes of possession of a handgun by a 

convicted felon and of being a second-degree persistent felony offender. As 

enhanced, Appellant was sentenced to a total of twenty years in prison. He 

appeals as a matter of right. 

Appellant contends that the trial court misapplied the law pertaining to a 

search based on a "protective sweep" when it denied his motion to suppress his 

illegal arrest, seizure, search and fruit from the poisonous tree under. Maryland 

v. Buie, 494 U.S. 325 (1990). More specifically, he argues that the police 

unlawfully located and identified him during the course of a protective sweep at 

a Louisville residence where he was staying, which in turn led to his unlawful 

arrest during the course of which he spontaneously uttered an incriminating 

statement to police. That incriminating utterance, Appellant contends, should 
have been suppressed as the fruit of an unlawful search, seizure, and arrest. 

We disagree. 

As demonstrated below, the initial entry of police into the residence was 

consensual; under the totality of the circumstances, the scope of the protective 

sweep was reasonable; the initial seizure of Appellant was lawful; and the 

incriminating statement uttered upon his arrest was spontaneous and not a 

product of custodial interrogation. We find no violation of Maryland v. Buie or 

other applicable law. We conclude that suppression of Appellant's 

spontaneous utterance was not required. Accordingly, we affirm Appellant's 

conviction and sentence. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

The chain of events leading to Appellant's incriminating statement began 

when Louisville Police Officers Spaulding and King stopped a vehicle registered 

to Cameron Adkins. Police had two outstanding warrants for Adkins' arrest. 

The driver of the vehicle explained to the officers that he was a friend of Adkins 

and he told them where she could be found. The officers went to the address 

and recognized Adkins on the porch. Upon seeing the officers approaching, 

Adkins quickly went inside the residence. The officers then called for 

assistance in apprehending Adkins. 

Officer Spaulding knocked on the front door. When an occupant of the 

house, Anthony O'Neal, opened the blinds of a large window beside the door, 

Spaulding saw a handgun resting on the mantle inside the residence. As 

O'Neal opened the door, Spaulding saw Adkins retreat into the back part of the 

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residence. O'Neal consented to the officers' request to enter the home to 

apprehend Adkins on the outstanding warrants. O'Neal's authority to consent 

to the officers' entry has not been challenged. Officer King and several other 

officers called in as backup entered the residence and joined the search for 

Adkins. O'Neal admitted to having possessed the handgun and that he was a 

convicted felOn. 

As they searched for Adkins, officers observed drug paraphernalia 

throughout the residence. Adkins was eventually located hiding in a bedroom 

with another female, Megan Bruce. Adkins and Bruce were taken into the 

front room while Officer King looked about the residence for other individuals 

whose presence might pose a potential threat to the officers. King found 

Appellant in the basement trying to hide behind the furnace, and brought him 

to the front room with the other occupants of the home. 

The officers began a check to determine if any of the other individuals 

present had outstanding warrants. Adkins and Bruce had outstanding 

warrants and were arrested for that reason. O'Neal was arrested based upon 

his verified admission that he was a convicted felon and his admission that the 

handgun on the mantle belonged to him. Appellant falsely identified himself to 

officers as "Ralph Simpson." When officers found no outstanding warrant for 

"Ralph Simpson," they allowed Appellant to leave the residence. 

Soon afterward, Officer King discovered that Appellant had 

misrepresented his true identity, and that his true name is Michael Simpson. 

Furthermore, it was discovered that a warrant for Appellant's arrest was 

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outstanding. Appellant was quickly located and arrested on the warrant and 

for giving the police a false name. While being processed into jail, Appellant 

spontaneously acknowledged to Officer King that he owned the handgun found 

at the residence. At that point, Appellant was charged with the additional 

offense of possession of a handgun by a convicted felon. 

Appellant was tried for possession of a handgun by a convicted felon and 

for being a persistent felony offender. Appellant moved to suppress the 

evidence gathered by police as a result of the search of O'Neal's residence. 

Appellant asserted that the statement he allegedly made to Officer King 

admitting ownership of the handgun found on the mantle should be 

suppressed because the police had neither reasonable suspicion nor probable 

cause to enter the basement of the residence and seize him, and that any 

evidence obtained as a result of the illegal seizure of his person must be 

suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 

U.S. 471 (1963). Finding that the officers engaged in a proper protective sweep 

which resulted in finding Appellant in the basement, the trial court denied the 

motion and the case proceeded to trial. Appellant was found guilty of being a 

felon in possession of a handgun. Appellant was additionally found to be a 

second-degree persistent felony offender and was sentenced to a total of twenty 

years' imprisonment. This appeal followed. 

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II. ANALYSIS 

A. Standard of Review — the transition from RCr 9.78 to RCr 8.27 

At the time of Appellant's trial, RCr 9.78 was in effect and governed 

pretrial motions to suppress evidence.' RCr 9.78 provided that "[i]f supported 

by substantial evidence, the factual findings of the trial court shall be 

conclusive." Under RCr 9.78 we apply the two-step process adopted in Adcock 

v. Commonwealth, 967 S.W.2d 6 (Ky. 1998). First, we review the trial court's 

findings of fact under a clearly erroneous standard. Welch v. Commonwealth, 

149 S.W.3d 407, 409 (Ky. 2004). Under this standard, the trial court's findings 

of fact will be conclusive if they are supported by substantial evidence. See CR 

52.01; Canler v. Commonwealth, 870 S.W.2d 219, 221 (Ky. 1994) (citations 

omitted). We then "conduct a de novo review of the trial court's application of 

the law to the facts to determine whether its decision is correct as a matter of 

law." Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010) (quoting 

Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002)). 

Effective January 1, 2015, RCr 9.78 was superseded by RCr 8.27. 

Unlike its predecessor, RCr 8.27 does not specifically address an appellate 

standard of review. However, CR 52.01 2provides that findings of fact shall not 

be set aside unless clearly erroneous. "A finding supported by substantial 

RCr 9.78 was deleted effective January 1, 2015. 

2RCr 13.04 provides that "[t]he Rules of Civil Procedure shall be applicable to 

criminal proceedings to the extent not superseded by or inconsistent with these Rules 

of Criminal Procedure. Given the rule change, RCr 13.04 makes CR 52.01 applicable. 

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evidence is not clearly erroneous." 3 Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. 

App. 2010) (citation omitted). Consequently, the application of CR 52.01 leads 

us to the identical standard applied under RCr 9.78. Accordingly, while RCr 

9.78 has been superseded, the standard of review for a pretrial motion to 

suppress as stated in Adcock, Welch, Canler, Payton, and Neal, all of which 

were buttressed by RCr 9.78, remains substantively unaffected. 

B. The Trial Court's Factual Findings 

Following the suppression hearing the trial court entered the following 

findings: 

The testimony of record is that police detective Spaulding received 

information that a subject for whom there was an outstanding 

arrest warrant, Cameron Adkins, might be at 1176 Wilson Avenue. 

When the detective arrived at that addres-s, he saw Ms. Adkins on 

the porch. She immediately went inside. Spaulding called for 

backup and was joined by Detective King. They approached the 

house and knocked on the door. While standing on the doorstep, 

Spaulding observed a person later identified as Defendant O'Neal 

open the blinds of a large window beside the front door, then 

retreat. Through the window, Spaulding observed a handgun 

setting on the mantle in the unfurnished room. Several moments 

later, O'Neal opened the door. Spaulding saw other individuals in 

the home. O'Neal was informed of the purpose of the officers' visit, 

and O'Neal allegedly allowed the detectives to enter the home. In 

response to a question about the ownership of the gun, O'Neal 

allegedly stated that the gun was his. King testified that he 

searched the home and located two females, one being Ms. Adkins. 

He also observed suspected controlled substances and 

paraphernalia in the interior rooms. He found Defendant Simpson 

in the basement of the home. All the occupants were then led to 

the front from that the detectives first entered. O'Neal and the two 

females were arrested, and Simpson was cited for drug 

3"Substantial evidence is that which, when taken alone or in light of all the 

evidence, has sufficient probative value to induce conviction in the mind of a 

reasonable person." Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010) (internal 

quotes and citation omitted). 

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paraphernalia. However, the detectives confirmed shortly 

thereafter that Simpson had given a false name and had an 

outstanding warrant, he was arrested as he walked down the 

street. 

Appellant disputes minor details of the trial court's factual findings 4 

which are not relevant to our disposition of the case. The trial court's material 

findings, as set forth above, are entirely supported by the testimony given at 

the suppression hearing and are therefore binding upon our review. CR 52.01; 

Canler, 870 S.W.2d at 221. As to the trial court's recitation that "O'Neal 

allegedly allowed the detectives to enter the home," based upon the trial court's 

disposition of the case, we construe as a finding that O'Neal did in fact allow 

the officers to enter the home for the purpose of finding and arresting Adkins 

on the outstanding warrants. 

C. De Novo Application of the Law to the Trial Court's Findings 

The Fourth Amendment to the United States Constitution and Section 10 

of the Kentucky Constitution protect citizens from unreasonable searches and 

seizures by the government. Warrantless searches and seizures inside a home 

are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 

(1980). However, warrantless searches of a residence based upon the consent 

of a person with the authority to give such permission is a well-established 

exception to the warrant requirement. Bratcher v. Commonwealth, 424 S.W.3d 

411, 413 (Ky. 2014). Furthermore, "for Fourth Amendment purposes, an arrest 

warrant founded on probable cause implicitly carries with it the limited 

4For example, Appellant questions the trial court's findings regarding the 

precise sequence of when those present were gathered together in the living room of 

the residence. 

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authority to enter a dwelling in which the suspect lives when there is reason to 

believe the suspect is within." Payton, 445 U.S. at 603. 

As noted above, O'Neal gave the police permission to enter the residence 

for the purpose of locating Adkins and there is no allegation that O'Neal lacked 

the authority to consent to the entry. Given that O'Neal had consented, the 

trial court properly determined that the officers' initial warrantless entry into 

the home was lawful. Bratcher, 424 S.W.3d at 413. Moreover, the officers had 

a valid warrant for Adkins' arrest and having just seen her enter the residence, 

they had reason to believe she was inside. Under Payton, they were authorized 

to enter the residence to execute the warrant even without O'Neal's consent. 

Since the initial police entry into the residence was proper, the question 

is then reduced to whether the officers properly extended their search into the 

basement where Appellant was found after their purpose, arresting Adkins, 

had been accomplished. As recognized by the trial court and the parties, the 

established warrant exception at issue at this point in this case is the so called 

"protective sweep" exception as articulated in Maryland v. Buie, 494 U.S. 325 

(1990). We recognized this exception and adopted the Buie holding in Guzman 

v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012), 5and we further explained 

its principles in Kerr v. Commonwealth, 400 S.W.3d 250 (Ky. 2013), and 

Brumley v. Commonwealth, 413 S.W.3d 280 (Ky. 2013). 

5It is important to note that Guzman is distinguishable from this case because 

in Guzman the original consent to enter the residence was limited to consent to enter 

the front room, whereas here the consent was to enter the home, generally, to arrest 

Atkins. The consent authority here was far broader than in Guzman. 

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Buie permits officers to conduct protective sweeps in two situations. 

First, with or without probable cause or reasonable suspicion, officers may 

conduct a protective sweep "as a precautionary matter," looking into spaces 

immediately adjoining the place of arrest from which an attack could be 

immediately launched." Brumley, 413 S.W.3d at 284. Because the protective 

sweep here extended well beyond the immediate vicinity from which an 

immediate attack could be launched, this prong of Buie is not implicated. 

Second, a protective sweep may extend beyond the area immediately 

surrounding the place of arrest into places that, to a reasonably prudent officer 

relying upon rational inferences drawn from articulable facts, may harbor a 

person that poses a threat to those on the scene of the arrest. Id. Justification 

for this type of sweep implicates the well-known reasonable suspicion standard 

as stated in Terry v. Ohio, 392 U.S. 1 (1968). Buie, 494 U.S. at 334; See 

Brumley, 413 S.W.3d at 284. This second type of Buie protective sweep is 

implicated here. 

"Reasonable suspicion must be determined under the totality of the 

circumstances, considering all of the information available to law enforcement 

officials at the time." Brumley, 413 S.W.3d at 285 (internal quotes omitted) 

(citing Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007) (quoting Feathers 

v. Aey, 319 F.3d 843, 849 (6th Cir. 2003)). "However, determinative 

information must relate to the purpose for which the protective sweep 

exception was created." Id. "The justification for a protective sweep is the 

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safety threat posed by unseen third parties in the house." Id. (citing Buie, 494 

U.S. at 336). 

The trial court succinctly summed up the factors supporting reasonable 

suspicion in its suppression order: 

In this case, before Detectives Spaulding and King ever entered the 

home, they knew at least two people were in the home, and that 

there was at least one weapon in the home. Upon the opening of 

the door, the officers observed a third person in the home, going 

from room to room. Because of the multiple persons present, as 

well as the presence of the weapon, the Court finds that the 

detectives had articulable facts from which they could reasonably 

infer that there were other people in the home who could pose a 

threat to officer safety. The protective sweep of the house was 

therefore proper. 

Our analysis also takes into account another factor that confronted the 

officers. In addition to being aware of the gun and drug paraphernalia in the 

home, the officers also were aware that the house was without workable sinks 

or toilets, giving the residence some indicia of being a drug house. Drug 

houses, and their occupants, inherently pose dangers to police officers. Under 

the totality of the circumstances, this more expansive protective sweep was 

justified because of the reasonable concern that unseen additional persons 

may be on the premises posing a threat to the officers. 

In summary, we are persuaded that the trial court properly determined 

that the officers (1) lawfully entered the residence to arrest a fugitive, and (2) 

conducted a lawful protective sweep justified by articulable facts from which a 

reasonably prudent officer would believe that other individuals posing a danger 

to the police may be present. Then, after learning that Appellant had falsely 

identified himself and that he, too, had an outstanding warrant against him, 

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the police lawfully arrested Appellant. And finally, Appellant's incriminating 

expression was spontaneous and not a product of custodial interrogation. 

Consequently, the statement was lawfully used against him at trial. Campbell 

v. Commonwealth, 732 S.W.2d 878, 881 (Ky. 1987) ("Volunteered statements of 

any kind are not barred by the Fifth Amendment and their admissibility is not 

affected.") (citation omitted). 

In summary, the trial court properly denied Appellant's motion to 

suppress the evidence obtained against him as a result of the initial entry into 

the home and the ensuing protective sweep. 

III. CONCLUSION 

For the foregoing reasons, the judgment of the Jefferson Circuit Court is 

affirmed. 

All sitting. All concur. 

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COUNSEL FOR APPELLANT: 

Daniel T. Goyette 

Louisville Metro Public Defender of Counsel 

Office of the Louisville Metro Public Defender 

Cicely Jaracz Lambert 

Assistant Appellate Defender 

Office of the Louisville Metro Public Defender 

Sean Thomas Pharr 

Louisville Metro Public Defender 

COUNSEL FOR APPELLEE: 

Jack Conway 

Attorney General of Kentucky 

Taylor Allen Payne 

Assistant Attorney General 

Office of Criminal Appeals 

Office of the Attorney General 

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